Both in business and our personal lives, the COVID-19 pandemic has speeded up the transition to a virtual online world faster than we ever could have anticipated three years ago. One of the most pronounced changes we have seen with our clients, particularly those in the food and drink sector, is in how they are marketing to new customers.
In many ways, marketing and advertising will always butt heads with compliance. The former is all about creativity, thinking outside the box and trying to grab a prospective customer’s attention in unexpected ways. Meanwhile, the latter is all about following pre-existing rules, being clear, open and predictable.
However, we think these two seemingly contradictory philosophies can co-exist happily, allowing businesses to create marketing materials and win new customers, without getting themselves into legal trouble in the process. The key is to understand what the rules are and ensuring that any marketing or advertising you do sits within them.
Winning a fine from the ASA
The first port of call when it comes to online marketing and advertising compliance is the Advertising Standards Agency and in particular its UK Code of Non-broadcast Advertising and Direct & Promotional Marketing (known as the “CAP Code”).
The CAP Code sets out the rules that all businesses have to follow when advertising their products, running sales promotions and undertaking any marketing communications with customers. There is a separate code for broadcast advertising, but the CAP Code is the key for any online marketing work you do.
The code includes a huge number of rules, so we can’t cover it all here (you’d soon stop reading if we did) but food and drink producers should be particularly alive to Section 15 which sets out specific requirements when promoting food products. For example, it covers the rules around making health claims about your products and the specific restrictions when promoting foods or drinks which are high in fat, salt or sugar.
Any online marketing campaigns, including competitions, should always be checked to make sure they’re compliant with the CAP Code. Otherwise, you could find that all your time and investment in a campaign is scuppered.
Rise of influencers
Whether you love them or hate them, social media influencers are huge business. They have generated massive personal followings, giving them significant leverage when it comes to promoting products and services.
After initial scepticism in some quarters, businesses are increasingly using influencers as a way to reach their target audience. It isn’t just the big multinationals either, we’ve worked with numerous SME businesses who are using influencers in their preferred space to promote and sell more of their products.
This is especially true in the food and drink sector, where a push towards healthier, more varied and more sustainable products has led businesses to seek out partners who can promote such messages.
Whether it’s TikTok chefs using your products in a new recipe video, or healthy lifestyle gurus raving about the benefits of your latest range on YouTube, the opportunities to reach a massive, targeted audience is huge if done correctly.
However, it’s not all sunshine and rainbows in the world of influencer marketing (this is an article by lawyers, so you probably knew that). You have to choose who you work with carefully, set down clear rules for how they can use your brand, images and trade marks and monitor their posts to ensure that both your rules and the ASA’s for social media marketing are being followed. If they aren’t you have to act quickly to protect your business and your brand.
Don’t forget about the data
Yes, unfortunately you’re never too far away from the dreaded GDPR and for those wanting to advertise their products directly to consumers online it is a particularly big risk and concern.
Whether you’re asking people to sign up for email newsletters, inviting people to enter a competition or just collecting a database from your social media follows, you are handling consumers’ personal data and need to do so within the legal requirements.
You need to know what personal data you have, what you’re doing with it, how long you’re keeping it and what you’re doing to protect it. You also need to ensure that this information is being properly communicated to the people whose data you hold.
This is just the tip of the iceberg, so if already you’re starting to worry that you don’t know the answers to these questions, you need to get some help and put the proper processes in place. A major breach involving consumer data is incredibly damaging for businesses both financially and reputationally.
The world of online and social media marketing creates fantastic opportunities for businesses large and small. It has levelled the playing field for SME businesses, allowing them to access huge numbers of people quickly and more cheaply than was possible in the days of traditional media.
However, with innovation comes regulation and you have to combine the two in order to survive and thrive in the new online world.
If you’d like to know more or need any advice on protecting your business when marketing online, the Howes Percival team have a huge amount of experience and would be happy to help. Contact Miles Barnes, Senior Associate, Corporate, Commercial & Banking at
miles.barnes@howespercival.com or Jenna Bruce, Director, Intellectual Property & IT at jenna.bruce@howespercival.com
